Introduction
Freedom of speech is a fundamental right, but how far does that right extend within an employment relationship? Is an employee allowed to publicly criticize his or her employer? And can an employer intervene if such criticism leads to internal tensions? In a recent case that even reached the Supreme Court, that very question was at the heart of the matter. The outcome is of great importance to employers and employees, especially in sectors such as education, where social engagement and professional criticism often go hand in hand.
The Background: A Book About Practice
The case centered on a teacher at the ROC in Nijmegen. She wrote a book in which she expressed criticism of the educational practices and structure within the institution. The book contained observations about a new teaching method and about working conditions within the team. Although no names were mentioned, the educational institution believed that colleagues with some prior knowledge could be identified. According to the employer, the publication led to disruption within the team.
Following the publication, the teacher was initially suspended. In 2020, she was ultimately dismissed; according to the employer, this was justified due to the disrupted working relationships that the book allegedly caused.
The legal battle: all the way to the Supreme Court
The teacher contested her dismissal and invoked her right to freedom of speech. Both the district court and the court of appeals initially dismissed her claims. They found the dismissal justified on the grounds of a disrupted working relationship.
The teacher did not let the matter rest there and took her case to the Supreme Court. The court ruled in her favor on a crucial point: the judge had failed to sufficiently recognize that her dismissal was directly related to the statements in her book. This constituted an interference with her fundamental right to freedom of expression, as protected by Article 10 of the European Convention on Human Rights (ECHR).
The Supreme Court remanded the case to the Court of Appeal in ’s-Hertogenbosch, instructing it to give greater weight to the right to freedom of expression in its assessment.
The court’s ruling: the termination was unjustified
In 2023, the court conducted a reassessment. It determined that the teacher’s book was critical but not offensive. Moreover, it served the public interest: stimulating debate on the quality and structure of education. Although colleagues may have recognized themselves in certain passages, this was not considered unlawful or inappropriate.
The court also emphasized that the termination was directly related to the publication. This constituted an impermissible restriction on freedom of speech, which in this case outweighed the employer’s interest in terminating the employment relationship.
The termination was therefore deemed unjustified. The employee is entitled to fair compensation, the amount of which will be determined by mutual agreement between the parties. The court of appeals will issue a separate ruling on this matter if the parties are unable to reach an agreement.
Practical Implications: Careful Consideration When Dealing with Employee Criticism
This ruling underscores that, in principle, employees are also permitted to express their opinions about their employer’s policies or working conditions outside the workplace. That right is afforded additional protection, particularly when it comes to socially relevant topics, such as teaching methods or public services.
Employers considering taking action in response to an employee’s external statements would be wise to carefully observe the principle of proportionality. Was the employee making a public contribution to the debate? Were the statements factual or personally offensive? Have alternatives to termination been sufficiently explored? And was the employee’s conduct truly harmful to the organization?
Without clear answers to those questions, the employer runs the risk of a costly legal defeat.
Conclusion
The case of the teacher at ROC Nijmegen shows that freedom of speech remains a fundamental right even within the context of an employment relationship. Critical comments about work cannot simply lead to dismissal, especially if they contribute to public debate. Employers should allow room for opinions, even if they are uncomfortable. And employees should speak up, provided they do so respectfully and with the greater good in mind.
This blog was written by Stijn Blom, Esq., an employment law attorney at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists employers and employees on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and policies—with his practical and personalized approach, he helps employers and employees move forward. Want to learn more? Visit Stijn’s page.
Arbeidsadvocaat.nl is happy to help you if you have any questions about termination. Please feel free to contact us .
April 2025